Jurisdiction to Zone Indian Reservations

This comment will examine one of the most critical aspects of the civil jurisdiction issue—tribal jurisdiction to exercise land use planning and zoning control. With such jurisdiction, a tribe may regulate or prohibit the development of reservation lands, and thus exercise a measure of control over the future of its reservation. Without zoning jurisdiction, most tribes would be forced to submit to the judgments of non-Indians about the uses of reservation lands. An introduction to the history and patterns of land ownership on Indian reservations is important to an understanding of the clashes between Indian and non-Indian reservation residents. Equally important is the recognition that tribes have certain inherent controls over reservation lands, resources, and activities. Following a brief development of these background issues, this comment examines federal diminutions of tribal sovereignty and their possible application to tribal zoning powers. It concludes that specific federal enactments that have been asserted as support for state zoning powers do not in fact transfer such jurisdiction to the states; that the exercise of state zoning jurisdiction may be preempted by federal enactments and tribal laws; and that state zoning would, in any event, constitute impermissible infringement on any tribal zoning schemes. Finally, since federal law in this area is in the process of significant change, this comment concludes with an analysis of the underlying political considerations that may ultimately determine the extent to which Indians will be allowed to regulate land use on their reservations